ARE TWO
i PAIL CAPITAL JOURNAL. SALEM, OREGOJ., THURSDAY, APRIL 13. 1011.
the capital journal
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FULL LEASED WIRE TELEGRAPH REPORT
OREGON SUPREME COURT DECISIONS
Fall Text Published by Courtesy of F. A. Turner, Reporter of the
Snpreme Court
Gallagher t. Kcllilier, ct ill, Douglas
County.
A. M. Gallagher, respondent, v. W.
J. Kelllber and Sawyer, appel
lants. Appeal from the circuit court
for Douglas county. The Hoa J. W.
Hamilton, judge. Argued and sub
mitted March 23, i9U. 0. P. Coshow
(Coshow & Rice, on brief) for re
spondent. J. 0. Watson (Cardwell &
Watson, on brief) for appellants.
Eakln, C. J. Affirmed.
This la an action In ejectment.
Plaintiff alleges that he is the owner
and entitled to possession of the fol
lowing described real estate In Doug
las county, Oregon, "the same being
a part of the Donation Land Claim
of George B, Finch, in township 27,
south of range 5 west, of Willamette
meridian, and particularly described
as: Beginning at the northwest cor
ner of the tract of land commanly
known as the "Pine Grove Church
Property," and running thence sou
therly along the western boundary
of said "Pine Grove Church Proper
ty," to the southwest corner there
of; thence easterly along the south
ern boundary of said Church prop
erty and the southern boundary of
the said Donation Land Claim of
George B. Finch, 10 feet and five
Inches; thence northerly to the nor
thern boundary of said "Pine Grove
Church Property" at a point six feet
10 Inches easterly from the north
west corner thereof, and thence wes
terly along the northern' boundary of
said "Pine Grove Church Property,"
six feet 10 Inches to the place of be
ginning, said land described being a
portion of that tract of land particu
larly described In the deed from G.
W, Genger and wife to the Trustees
of the United Brethren Church of
the Deer Creek Class of Douglas
county, Oregon, and recorded in page
149 and 150 of Vol. 10 of the Deed
Records of said Douglas county;"
that until ousted by defendants
plaintiff lias been in the open, notor
ious, exclusive and adverse posses
sion thereof, under a clalhi of owner
ship for more than 20 years; and
that on April 28, 1909, defendants by
ousted plaintiff
stealth unlawfully
therefrom.
Defendants deny that they ousted
plaintiff from possession of the
premises as alleged, or at all, with
hold the same from him, which an
swer amounts to a disclaimer. The
cause was tried before the court
without a jury, and the facts were
found in favor of plaintiff. From the
Judgment thereon defendants appeal.
Eakln, C. J.: The real controversy
at the trial was whether the descrip
tion of the property, sought to be re
covered, as set out In the complaint,
will Justify a recovery without proof
that It Is included in the description
contained In the deed from Genger to
the trustees. There being no issue
as to plaintiff's ownership of the
property, he confined his proof to
the erection of a fence on the west
ern line of the property and his oc
cupancy of the premises from the
year 1888. There was no proof to
show the location upon the ground
of the west line of the tract as
described in the deed; nor does
it appear from the complaint
that the property described In the
jdeed from Genger to the trustee Is
the property known as the "Pine
Grove Church Property,"' but that
fact appears from the evidence.
David Hunter, a witness for plain
tiff, testified, in substance, that he is
j acquainted with the Pine drove
( Church property; has known it for
about 25 years; was for 15 years a
trustee of the United Brethren
church; that he knows where the
west boundary of the property has
been during that time; that ,in the
fall of 1888 he helped build the fence
on that line, -(referring to the fence
rmoved by defendants) ; that "there
was an understanding with Genger.
He made some objections in regard
to where the line ran, and he also
said that what he lost at one end next
to the creek he would gain on the
j other, and he said all right, to put
It up. I cannot say in what
j way they agreed with Genger, only
( I know that It was questioned at the
time we were talking about putting
By Lydia E. Pinkham's Vegetable Compound
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f Mrs. Pink ham Invites all sick women
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Address Mrs. Plnkuam, Lynn, Mass.
up the new fence;" and that Genger I
agreed that the fence should be put
where It was built and It has re
mained the boundary since 1883.
The evidence Is conclusive that the
United Brethren Church was in pos
session of tho property to th"at fence
all that time and that the fence was
put on the western boundary on the
division line between Genger's land
and that of the United Brethren
Church. This proof we think was, at
least, prima facie sufficient to estab
lish the western boundary of the
tract described In the deed.
In Turner v. Baker, 64 Mo. 238, it
is said: "That when proprietors of
contiguous estates, the boundaries of
which are indefinite and unascer
tained, agree upon the lines dividing
their estates, the calls in their re
spective deeds, fasten themselves
upon the property to which they are
thus applied, and the title passed by
the conveyances covers and includes
every part of the property so Identi
fied as being comprehended within
the description." This language is
quoted with approval in Lennox v.
Hendricks 11 Or. 33, 37. In Egan v.
Finney, 42 Or. 599, Mr. Chief Justice
Moore holds that a division line,
agreed upon between adjacent own
ers of real property, and acquiesced
in for a long time, is a circumstance
tending to show that It was built
upon the true boundary.
We think the possession of the
tract to the fence by plaintiff and his
grantors claiming under the deed,
long acquiesced in, is. as against a
stranger to the title, prima facie evi
dence, at least, that the tract de
scribed in the complaint is within the
boundaries mentioned in the deed,
and, therefore, evidence of posses
sion of the property described In the
complaint. Prior, actual possession
of the land Is enough to enable the
possessor to recover It against a
mere trespasser who enters without
any title. This rule concedes that he
who secures possession of real prop
erty thereby obtains a prior right
against all persons except the owner,
and Is recognized in , Browning v.
Lewis,39 Or. 11, 17; and Sommer v.
Compton, 52 Or. 173. Therefore, we
conclude that, under the description
In the complaint, plaintiff has estab
lished a prima facie case.
On the trial defendants admitted
that they removed the fence as al
leged In the complaint, and offered
Borne evidence to establish that the
true west line of the property de
scribed in the deed to the trustees Is
8 or 10 feet ast of the old location
of the west fence. Germond, deputy
county surveyor, is the only witness
who attempts to testify upon that
matter. He says that he surveyed a
piece of property there for Mr. Gal
lagher and established the northwest
corner of the Church property (which
Is the beginning point for defendant's
fence). He testlfiess to no facts in
regard to the survey or the data
from which he made it. This Is not
competent evidence of the true loca
tion of the corner or line but only
"Just Say"
HORLICK'S
It Means
Original and Eanulm
HALTED MILK
Thi Food-drink for All kgtu
More healthful than Tea or Coffee. (
Agrees with the weakest dlgesh'on.
Delicious, invigorating and nutritious.
Rich milk, malted grain, powder form.
A quick lunch prepared in a minute.
Take no substitute. AtkforHORLICK'S.
Others are imitations.
542; Moores v. Moores, 36 Or. 261;
State ex rel v. Fields, 53 Or. 453.
Therefore, this court will not deter
mine the question suggested. The
appeal is dismissed.
Zt'lig t. nine Point Oyster Co, et al,
.Multnomah County.
M. A. Zellg, respondent, v. Blue
Point Oyster Company, et al, appel
lants. Appeal from the circuit court
for Multnomah county. The Hon. W.
N Gatens, Judge. On petition for re
hearing. Dismissed, March 7, 1911.
U3 Pac. 852. Julius Silvestone, for
respondent. Claude Strahan and
Waldemar Seton, for appellants.
Burnett, J. Motion to dismiss is
overruled.
Burnett, J.: Since the petition for
rehearing was filed in this cause,
challenging the correctness of the
order dismissing the appeal, it has
for the first time come to the know
ledge of the court by the statement
of the clerk that the transcript here
in reached his possession a least by
October 2, 1910,. which day being
Sunday, according to his custom he
marked it filed as of the following
day. This being true, the appellant
was In time with his transcript.
The former order dismissing the ap
peal is set aside and the motion to
dismiss the appeal Is overruled.
Francis t. The Mutual Life Insur
ance Co., Miiltnonuih County.
Mary C. Francis, plaintiff and ap
pellant, v. The Mutual Life Insur
ance Company of New York, a cor
poration, defendant and respondent.
Appeal from he circuit court for
Multnomah county. Hon. John B.
Cleland, judge. Motion to strike out
the bill of' exceptions. Miller Mur
doch and John F. Logan, for appel
lant. Jerry E. Bronaugh, for re
spondent. Per Curiam. Motion de
nied. In this aation a judgment was ren
dered on the verdict for defendant
June 11, 1910. On December 10,
1910, the plaintiff filed her notice of
appeal with proof of service Indorsed
thereon and on the 20th of that
month filed her undertaking tin ap
peal. On January 6, 1911, a judge
of the circuit court In which the
cause was tried made an ex parte
order allowing the plaintiff till Jan-
lng or refusing of a new trial if a
motion for a new trial is filed, pre
pare and file a bill of exceptions. It
shall not be necessary to enter an
order in the Journal granting time
to file a bill of exceptions, unless the
court, by special order, extends or
shortens the time within which to
file it The court, upon be
ing satisfied that the adverse party
or' his attorney has had due notice
thereof, may, on application of
either party, grant an extension of
time to file a bill of exceptions, or a
statement of objections thereto, or
fix a time for the settlement there
of, but written notice shall not be
required." The case Is here pre
sented upon the motion of the de
fendant to strike out the bill of ex
ceptions because when it was certi
fied by the court eblow the time, as
provided by the rules of that court
In which said bill might be settled
and certified, nad long since elapsed.
Per Curiam. The syllogism of the
respondent in support of this motion
consists of' the major premise that a
rule of practice established by a
court has the same force and effect
as law and of a minor premise that
this bill of exceptions was not pre
sented within the term prescribed by
the rule from which the conclusion
sought to be deduced is that the bill
should be stricken out.
The major premise may well be
conceded. The statute relating to
the transaction of business In the
circuit court of the fourth Judicial
district prescribes that "the judges of
said court, or a majority of them,
shall jointly have power to make all
needful rules and regulations, not
Inconsistent with law, to render ef
fectual the provisions of this sec
tion and facilitate the transaction of
business." L. O. L. Sec. 913. This
statute is but delcaratory of the pow
er Inherent in all courts of record to
establish rules relating to the dis
position of business before such
courts and it is settled by the case
of Coyote G. & S. M. Co. v. Ruble, 9
Or. 121, that such rules have the
force and effect of law and are
obligatory upon the court making
them as well as upon suitors.
The question then Is remitted un
der the minor premise to a construc
tion of rule 19. The code Itself does
not prescribe any particular time
within which a bill of exceptions
may be presented for settlement and
In the absence of any rule on that
subject the course of authority Is
uniform in this state that it is dis
cretionary with the court whether
or not it shall settle a bill of excep
tions at any time after the trial.
Hayes v. Clifford, 42 Or. 568. The
jeffect of the rule In declaring that
any party to a civil or criminal ac
tion may within 30 days prepare and
file a bill of exceptions is to obviate
Joy
AMD
SICKNESS
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IT
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i. C. I'fcKKY,
his opinion. A surveyor's opinion as j ary 31st" to present her bill of
to the result of the survey, unsup-! ceptions. Afterwards on January 30
ported by the details of the survey,
both as to the data upon which it is
based and the manner of reaching the
the same judge made a further ex
parte order allowing the plaintiff
five days additional time to present
result is not competent, but when he ! her bill of exceptions. The record
gives the details of his work it is a
question of law whether, his method
was correct and a question of fact
whether his result is correct: Sea
brook v. Coos Bay Ice Co., 49 Or.
237, 242; 54 Or. 172.
There is no evidence before us
tending to prove that defendants were
entitled to possession of the tract in
question. Neither were defendants
entitled to offer evidenc of title
thereof, having pleaded neither right
nor title. Therefore they were naked
traspassrs: Sec. 328 L. C. L.; Oregon
Railroad & Nav. Co., 26 Or. 216.
Judgment of the lower court Is affirmed.
sent to this court discloses that the
circuit court has prescribed, among
others, rule 19, as follows: "Any
party to a civil or criminal action
may, within 30 days after the entry
of final judgment, or after the grant-
State of Oregon, Ex Rel. H. C. King,
t. WebHter, Multnomah County.
State of Oregon, Ex "Rel. H. C.
ing, appellant, v. Lionel R. Webster,
respondent. Appeal from the circuit
pourt for Multnomah county. The
Hon. Earl C. Bronaugh, Judge. Ar
gued and submitted March 29, 1911.
H. C. King, .for appellant. Zera
Snow, for respondent. Eakln, C. J.
Appeal dismissed.
Eakln, C. J.: This Is a proceeding
upon a writ of mandamus Issued
upon the relation of H. C. King, re
quiring Uie defendant, Webster,
county Judge of Multnomah county,
to render a verified statement to the
county auditor of the amount due
him for services each month since
July 1, 1906, and to set out in detail
the time he was absent from his of
fice during that period, other than on
official business, as required by Sec.
3059 L, O. L., or show cause why he
should not be required to do so. A
demurrer to the writ was sustained
by the circuit court and the cause
dismissed. Plaintiff appeals.
It appears that the defendant re-'
signed from the office of county judge
in May, 1910, at which time he ceased
to exercise the office or act as county
Judge of Multnomah county, and Sec.
3059, If applicablpe to county judges,
which we do not decide, is functus
officio as to duties required of defen
dant during the time he exercise the
office. The controvrsy ts at an end.
The conditions have so changed that
any Judgment rendered upon this ap
peal could not be made effective:
State ex rel v. Grand Jury, 37 Or.
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FAIR GROUND FEED AXD
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5 gal. Kerosene (bring can)
65c
Extra choice Sugar Cured,
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Extra fcige meaty Pick-Nick
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5 lbs. pure Lard "5c
Best Valley Flour, sack... $1.20
Best Eastern Oregon Blue
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Choice heavy Bacon, lb 17c
11 lbs. 'White Beans 50c
5 1-lb. pkg. Corn Starch. ,. ,23c
5 cans nice Table Peaches. 50c
Garden Seeds
3 large full size 5c pkgs 10c
2 large full size 10c pkg... 13c
10-lb. sk. best Eastern Corn
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60 lbs. full weight Bran 80c
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R.N. MORRIS
PhniM. 1497.
the necessity of making an order in
each particular case prescribing the
time within which the bill shall be
presented. The restriction is ap
plied only to the parties. Under this
rule the trial court in its discretion
might say to the party: "You have
not availed yourself, of the time al
lowed by the standing rule," and so
deny the application for an extension.
On the other hand the court might,
without a showing, extend the time
without any abuse of its prerogative.
The rule does not amount to an ab
dication in any degree of the power
of the court in that respect. On the
contrary the last paragraph of the
rule expressly reserves to the court
the discretion of allowing the ex
tension of time to file a bill of ex
ceptions. It is not stated in the rule
that the application for such exten
sion must be made within the 30
days flr3t mentioned. The minor
premise of the syllogism Is not sus
tained by a fair construction of the
rule.
We cannot say, therefore that the
court has abused Its authority and in
the absence of any .showing on that
subject, aside from the application of
the rule, the motion to strike out the
bill of exceptions must be denied.
o
Kescucd From Whaler.
corLD not write '
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A Kansas man fell Into a barrel of
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dives Aid to Strikers.
fUNITED PBESS LEASED WIIIB.1
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